How does the USPTO determine if species are independent or distinct?
The USPTO determines if species are independent or distinct based on specific criteria outlined in the Manual of Patent Examining Procedure (MPEP). According to MPEP 808.01(a):
“Species may be either independent or related under the particular disclosure. Where species under a claimed genus are not connected in any of design, operation, or effect under the disclosure, the species are independent inventions.”
The examiner considers the following factors:
- Mutually exclusive characteristics: Species have features that are not shared with other species.
- Search burden: Different species require separate search strategies or queries.
- Prior art applicability: Art applicable to one species would likely not be applicable to another.
- Separate classification: Species belong to different classification subgroups.
If these criteria are met, the examiner may issue a species election requirement, asking the applicant to choose a specific species for examination.
To learn more: